Personal Representative of Starling's Estate v. Fisherman's Pier, Inc.

• Decision Date: 15 July 1981
• Docket Number: No. 80-1711,80-1711
• Citation: 401 So.2d 1136
• Parties: PERSONAL REPRESENTATIVE OF the ESTATE OF John Edward STARLING, etc., et al., Appellants, v. FISHERMAN'S PIER, INC., etc. et al., Appellees.
• Court: Florida District Court of Appeals

Page 1136

401 So.2d 1136

PERSONAL REPRESENTATIVE OF the ESTATE OF John Edward STARLING, etc., et al., Appellants, v. FISHERMAN'S PIER, INC., etc. et al., Appellees.

No. 80-1711.

District Court of Appeal of Florida, Fourth District.

July 15, 1981.

Edward A. Perse of Horton, Perse & Ginsberg, and Tew & Spittler, P. A., Miami, for appellants.

Larry Klein, and Pomeroy, Pomeroy, Betts & Pomeroy, West Palm Beach, for appellees.

LETTS, Chief Judge.

This appeal is predicated on the dismissal with prejudice of a complaint charging a corporation, which operated a commercial fishing pier, with negligence for failure to safeguard a passed-out drunk customer who was left lying near the ocean on the pier, by himself, in the early hours of the morning and rolled over into the water and drowned. We reverse.

The above facts involve gross conduct on the part of the man who drowned, perhaps exacerbated by the fact that his consumption of the alcoholic beverages, which he brought with him to the pier, was in violation of a municipal ordinance. ¹ In consequence we would expect that a jury would find the drowned man comparatively negligent in large or even total measure. However, such expectation of an appropriate apportionment of negligence is not the test in Florida to determine if a cause of action has been stated. As we see it, the question here presented is: When an invitee comes upon the commercial premises of another and passes out cold on the floor, whether through illness, injury or drunkenness can the owner or operator of the premises ignore the inert figure lying in a dangerous place or does that owner or operator have an affirmative duty to take at least some minimal steps to safeguard the inert figure? We believe the owner or operator does have such a duty although we find no Florida case which on its facts comes close to the unusual situation now before us.

The pier operator cites us to American Jurisprudence for the proposition that there is "no general duty to come to the assistance of a person who is so ill or intoxicated as to be unable to look out for himself." See 57 Am.Jur.2d, Negligence § 41 at p. 389. However, that section appears to be concerning itself with the level of duty owed by a chance bystander or neighbor and there is no discussion on whether the quoted statement would apply to a customer found on commercial premises.

The pier operator also cites us to the Florida case of Reed v. Black Caesar's Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla. 3d DCA 1964) from which we now repeat a statement somewhat similar to the statement just above quoted from American Jurisprudence:

We find no authority, absent legislative enactment, to extend the (possibility of protection in favor of third persons) to those who become voluntarily drunk so that a right of action arises in them because of injury caused by their own intoxication .... Black Caesar's Forge at p. 788.

We would not necessarily disagree with this statement, even now, though it came before the adoption of comparative negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, under the facts of Black Caesar's Forge the plaintiff got himself drunk in a bar, recovered his keys from valet parking and drove off into Biscayne Bay where he drowned. As the Black Caesar's Forge case reasoned it, the drunk's self-caused incapability to drive after he left the bar was the proximate cause of his death, not the remote act of dispensing the liquor. However, we are persuaded that the Third District would have been of a different view had the drunk passed out in the bar parking lot and been left there on the ground, with full knowledge by the bar's employees, and later run over by an automobile.

The principal Florida case relied upon by the drunken deceased, is Swilley v. Economy Cab Co. of Jacksonville, 46 So.2d 173 (Fla.1950). However, we are not persuaded by it, because that case involves the "high degree of duty" owed by a common carrier to a passenger. Instead, we have found a West Virginia case with which we agree. Hovermale v. Berkeley Springs Moose Lodge No. 1483, 271 S.E.2d 335 (W.Va.1980). In this Hovermale case an invitee was drinking at the bar when he became ill and collapsed. Two friends, at the instruction of the bartender, carried him to his car to "sleep it off" out in the...